Sekona v. Custino, et al.

Filing 222

ORDER signed by District Judge Troy L. Nunley on 6/16/23 REVOKING Plaintiff's in forma pauperis status on appeal. The Clerk is directed to serve this Order on the Ninth Circuit Court of Appeals in Case No. 23-15848. (cc: USCA)(Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ETUATE SEKONA,

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No. 2:16-cv-00517-TLN-DMC

Plaintiff,
v.

ORDER

F. CUSTINO,
Defendant.

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On June 8, 2023, the Ninth Circuit referred the matter to this Court for the limited purpose

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of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on appeal or

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whether the appeal is frivolous or taken in bad faith. (ECF No. 221 at 1 (citing 28 U.S.C. §

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1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).)

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“An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken

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in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily

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met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is

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‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v.

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U.S., 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken

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in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or

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claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it

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lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In
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other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces

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not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id.

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On January 5, 2023, the magistrate judge issued findings and recommendations that the

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action be dismissed for failure to prosecute and failure to comply with the Court’s rules and

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orders. (ECF No. 209.) Plaintiff filed objections, Defendant filed a response, and Plaintiff filed a

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reply. (ECF Nos. 210, 212, 213.) This Court reviewed the filings and adopted the findings and

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recommendations in full and dismissed the action on May 11, 2023. (ECF No. 215.)

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Based on the record before it, the Court cannot conceive of any valid grounds upon which
an appeal can be based. The Court therefore finds that Plaintiff’s appeal taken from its August

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16, 2022 Order is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App.

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P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Plaintiff’s IFP status on

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appeal should therefore be revoked.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s in forma pauperis status on appeal is hereby REVOKED; and

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2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of

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Appeals in Case No. 23-15848.
IT IS SO ORDERED.
Date: June 16, 2023

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Troy L. Nunley
United States District Judge

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